Knesset Gives Preliminary Approval to Turning to Halacha in Absence of Clear Laws

The Knesset plenum on Monday approved in a preliminary vote the bill “Foundations of the Law
5727-1987” amendment, submitted by MK Nissan Slomiansky (Habayit Hayehudi) et al. The proposed law explicitly adds the principles of Jewish law to the sources of complementary laws in Israel’s legal system, for the court to turn to when it finds no answer to a legal question requiring a decision on a given legislation, in case law or in an analogy.

The bill passed in its first reading with 36 for and 30 against.

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The explanatory notes accompanying the bill read: “The Foundations of the Law, 5740-1980, enacted in 1980, determines the obligation to turn to sources in our Jewish heritage when deciding on a legal question that has no decision in legislation or in case-law.”

“However, the use of the law over the years has been very limited,” the notes suggest, “since the reference [in the original law] to ‘the principles of liberty, justice, integrity and peace of the Jewish heritage’ is unclear and can be interpreted broadly. Therefore, the bill seeks to explicitly mention the term ‘Principles of Jewish Law’ as an interpretative source to which the court may appeal in a case of a Lacuna.”

A Lacuna, or Non liquet (Latin for It is not clear), is a situation where there is no applicable law to decide a given case. Lacuna (gap, void, defect, want, loss) is used to indicate a gap in the law.

MKs from the Joint Arab List objected to the bill on the grounds that it is yet another step in the direction of making Israel a Jewish state at the expense of its non-Jewish citizens. However, in reality, the bill actually offers judges the opportunity to cherry pick from an enormous body of laws – Jewish halacha – where one may find support for absolutely every imaginable position and its opposite.

Indeed, the notion presented by the authors of the bill that Jewish halacha is a well-defined body of law, a streamlined set of answers to judicial questions, if you will, is absurd. There’s no doubt, in fact, that at some point some future Israeli judge will utilize this very amendment against Jews.